Surrogacy: Where does the UK stand and should the law be reformed?

A reform of the UK surrogacy legislation may take place in coming years.

Ali first heard about surrogacy when one of her close friends experienced fertility problems. She didn't feel ready herself to have children, but wanted to help other couples who wanted to become parents and she was curious about experiencing what it was like being pregnant.

Ali joined Surrogacy UK – the leading non-profit organisation joining together surrogates and intended parents in the country. Eight months ago, she gave birth to twin boys that she carried for a couple she met through the organisation.

"Seeing my friend struggle with IVF made me think more about surrogacy and what it involved and I thought if I can help a couple become a family then why not? Giving birth to the twins last year is the best thing I have ever done and its made me more determined to try and help another couple", Ali told IBTimes UK.

However, the twins were born early and have had to spend a considerable amount of time in hospital. One remains there. "As the law stands I was considered the legal mother until the parental order was granted so this involved giving many consents for treatment, operations, procedures, access for family members including their parents, the couple I helped," Ali said.

Who is the mother?

Different people disagree about what it means to be 'mother', and as new types of families have emerged in many countries, this has often led to heated ethical debates.

However, the law in the UK does come up with a clear definition. The Human Fertilisation and Embryology Act, which was amended in 2008, states that "the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child".

The world's first test tube baby Louise Joy Brown soon after her birth on 25th July 1978. Following her birth, the Human Fertilisation and Embryology Act was enacted.Keystone/Getty Images

"At the time the Act was first debated, in 1990, following the birth of the first IVF baby, the focus was very much on the possibility of a woman donating her eggs to someone else, and of the fact the mother carrying the child might not be the biological mother. The law was written to protect these women", said Natalie Gamble, one of the UK's leading fertility and surrogacy lawyers.

"But in the last two decades, surrogacy has grown in ways that were not expected in 1990's and we are still stuck with this law, which does not match the reality of what surrogacy is today", she added.

At the time, surrogacy cases were still rare, but to take them into account, lawmakers did come up with a mechanism known as parental orders. Issued by a judge, they allow for the recognition of intended parents as the legal parents, after the child is born. But this model now seems to have reached its limits.

In the interest of the child

Natalie Smith, a trustee of Surrogacy UK and the mother of twin girls born through surrogacy, experienced first-hand the problematic aspect of parental orders. She and her husband had to wait 15 months for theirs to come through. Although this is particularly long, it is not uncommon for parental orders to be granted by a family court, months after the babies are born. Like many other intended parents, Smith thinks that this system does not have the best interest of the child at heart.

"The law creates a feeling of shame and makes surrogacy appear shady, because it is based on the premises that the surrogate will not want to give up the child. That was in fact one of our fears with my husband when we started our surrogacy journey, but in reality, it almost never happens. The law alienates parents, who cannot legally take the most important decisions for their children's welfare until they receive the parental order", she said.

Parental orders to reassign parenthood can take months to come through.Istock

For surrogates, the system is also problematic, because there are no legal safeguards to protect them if the intended parents finally decide they do not want the child.

Smith and other members of Surrogacy UK thus set up a working group to investigate the many assumptions that people have about surrogacy, surveying surrogates and intended parents about their experiences. The organisation then launched a campaign for the law to be reformed based on the answers they received, now compiled in a 2015 report.

One of its key recommendations is to allow intended parents to be recognised as the legal parents, from the minute the baby is born.

A commercial model?

Thinking about how the law should be changed necessarily means addressing the topic of expenses paid to surrogates. It is not illegal for parents to pay a surrogate, but if they pay more than "reasonable expenses", such a payment must be 'authorised' by the family court before a parental order can be issued.

"The problem is that there is very little clarity about what 'reasonable expenses' means and that causes a lot of unnecessary confusion and anxiety for those involved, while in practice, there are no criminal sanctions and parental orders are never refused no matter what is paid. The reality is that UK law does not restrict payments to surrogates to expenses – it only pretends to", pointed out Natalie Gamble and her colleague Helen Prosser, who are also the co-founders of non-for-profit surrogacy agency Brilliant Beginnings.

How the agreement between surrogates and intended parents should be formalised is also a question that will need to be addressed. At Surrogacy UK, the sentiment is that there should be no-legally binding contract, to avoid moving towards a commercial model of surrogacy. "We must guard the principle of altruistic surrogacy in the UK – surrogacy as a relationship not a transaction", the report pointed out.

However, this does not mean that parents and surrogates should not thoroughly discuss all the difficult issues before the birth, and putting it all in writing to highlight what both parties expect and are willing to contribute remains important.

A step forward for single parents

To be eligible for a parental order, at least one member of the couple needs to be genetically related to a child, and they need to be in an enduring relationship. Single parents were thus not able to apply.

Single parents will now be able to get parental orders.iStock

But in 2016, Natalie Gamble fought and won a landmark case for a single dad who had gone through surrogacy in the US. She challenged the law on human rights grounds,

"There had previously only been 20 declarations of incompatibility with human rights across all areas of law in the UK, and 19 led to a change in the law. So we were pretty hopeful that the law would be changed to allow single parents will be able to be recognised as legal parents through parental orders", Gamble explains.

Last December, the government confirmed that it would update the Human Fertilisation and Embryology Act 2008 to respect the verdict of this judgement, opening the possibility for all single parents to get parental orders by the end of the year.

This is a first victory, one that parents and surrogates hope will soon be extended to achieve the much-needed in-depth reform of the law.

As Michael and Jerome, the parents of a small boy born through surrogacy put it: "Some countries do not allow surrogacy, and that's their right. But if you are going to have surrogacy in the UK, you need to legislate for it properly. Both parties are potentially very vulnerable and there needs to be a law that takes into account the reality of their situation."